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ELCAllowedNot stated in judgment· [2020] KEELC 2204 (KLR)

Margaret Nabuin Lomatong v Sylvia Abei Kosiyae & Jackson Ekiru Kosiyae (Environment & Land Case 107 of 2017) [2020] KEELC 2204 (KLR)

Environment and Land Court
21 May 2020
875 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff sued the defendants, jointly and severally, seeking a declaration that she is the sole owner of approximately 20 hectares of Lomatong family land within Lodwar, an order compelling the defendants to vacate or face forceful eviction, a temporary and permanent injunction, costs and interest. Her case was that the land is her family's ancestral land; her parents' and husband's remains are interred there; she and her husband lived on it from 1970 before moving out in the late 1980s for convenience; and in 2017 she learnt through her area chief that the 1st defendant had invaded the land and sold it to the 2nd defendant without any right to do so. The suit was once dismissed for want of prosecution but was reinstated by a ruling, and after the defendants and their counsel repeatedly failed to attend, the defence case was deemed closed. No party filed submissions, so the court relied on the pleadings, evidence and documents on record. The judge held that although the land is unregistered, unde­scribed and without boundary marks, a claim may arise out of possessory rights, and that any orders in such a case strictly regulate only the rights of the parties to the suit and not the whole world. Finding the claim unopposed and established on a balance of probabilities, the court entered judgment for the plaintiff: a declaration of entitlement to possession, an order that the defendants vacate or be forcefully evicted, a permanent injunction against interference, and costs against the defendants.

Key legal issues

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01

Whether a claim may arise out of possessory rights over unregistered land

Holding

Yes; possessory rights grounded on family occupation suffice even where the land is unregistered, though the resulting orders bind only the parties to the suit

Reasoning

The court noted the suit land was not registered, was identified only by the portion formerly occupied by the plaintiff, and had no formal description or boundary marks. Despite these defects, the judge held that possessory rights could found a claim over unregistered land. However, because the land was unregistered, any orders made would strictly regulate only the rights of the parties before the court and not operate against the whole world.

p. 2
02

Whether the plaintiff proved her claim on a balance of probabilities

Holding

Yes; the claim was unopposed and established on the pleadings, oral evidence and documents produced

Reasoning

The defendants and their counsel were absent when the defence case came up, and the court closed the defence case. Neither party filed submissions, so the court relied on the pleadings, evidence and documents on record. Considering the plaintiff's evidence and documents, the court found the claim unopposed and established on a balance of probabilities, entering judgment jointly and severally against the defendants.

p. 2

Legal principles established

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  • A claim based on possessory rights may arise over unregistered land, but orders in such a case regulate only the rights of the parties to the suit and not the whole world

Court orders

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  1. 1.A declaration that the plaintiff is, by virtue of her family's former occupation of the suit land, entitled to possession of the land measuring approximately 20 hectares within Lodwar sold by the 1st defendant to the 2nd defendant, and that the defendants have no interest whatsoever in the said land
  2. 2.The defendants shall vacate the land and, failing which, they and anyone else claiming under them be forcefully evicted therefrom
  3. 3.An order of permanent injunction restraining the defendants from howsoever interfering with the suit land
  4. 4.The defendants shall bear the costs of this suit
Jurisdiction invoked
First-instance suit before the Environment and Land Court; jurisdictional provision not stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Margaret Nabuin Lomatong v Sylvia Abei Kosiyae & Jackson Ekiru Kosiyae (Environment & Land Case 107 of 2017) [2020] KEELC 2204 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2204/eng@2020-05-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.